Sticky situation

LindaS · August 2003

I have an employee who, after 8 mos. of treatment for a back problem is claiming WC. As you can imagine, this is being investigated by the insurance co.. A couple of months ago we were made aware that he was being prescribed a narcotic pain medication (among other things) to alleviate his pain. We discussed this with him (he is a machine operator) and he assured us that if he takes any of this medication he will notify us and leave work (he has been approved for intermittent FMLA). Here's the problem...

The main clinic he is being treated at faxed me, what I thought were, billings for services they have rendered and had previously sent through the regular health insurance. What it turned out to be was ALL the medical notes from the physician and physical therapist. In these notes were statements, made by the physician, regarding statements the EE made wherein he states he is taking these narcotics 5-6 times a day. There are also statements by the physician that the EE stated there hadn't been any "close calls" despite being on multiple opioid agents (the physician's words).

I don't know how to, or if we should, act on this information due to the way we received it.

Any insight would be helpful.

Clovis W McArthur · August 2003

Your response is limited by WI law regarding drug testing of employees. In addition, your response is or may be limited by your company's policy regarding drug testing. If you have a policy that permits testing of employees "for cause or based upon reasonable suspicion of drug use" I believe you can rely on the information received from the clinic as a basis for requiring the employee to submit to a drug test.

Balloonman · August 2003

First thing I would do is inform the WC carrier that this was not present as WC originally, and that you want them to thoroughly investigate it and if at all possible deny it. Second I would bring the employee in question in, and the union steward, with another mgmt. witness and ask him to review the doctors' notes. Ask him if they are correct. If he acknowledges that they are correct I would then ask him about the prescription issue. Let him hang himself. Then based on your drug policy I would be as harsh as possible with him from a discipline standpoint. If he starts to lie and deny it even though he said the notes are correct I would send him for drug testing for cause, and notify the clinic about the prescription meds that you are testing for. Explain the issue. You might want to discuss with them first the problem and talk with the MRO about it.
Then again based on the test results, if positive, enforce your drug policy.
If he truly hurt his back away from work the doctors notes should reflect it. Either way I would hit him as hard as possible from a discipline standpoint based on the contract.
My $0.02 worth.
DJ The Balloonman

System · August 2003

Pardon me Clovis and Balloon; but, I don't see any mention of anticipated drug testing or unions in the posted question. If I were in that circumstance, I would call our attorney and relate what was in the 'mistakenly sent' record from the medical office and proceed in accordance with his advice. It may call for reasonable suspicion testing or it may call for something else. And your attorney may strongly caution you against forwarding that document to your comp carrier. Your attorney might also want to discuss with you the implications of using personal health information you either erroneously received or that you had no business being privy to even though you received it innocently. I agree that the information is quite revealing and seems to nail the coffin; however, I also think your attorney might advise you differently. I would not call him in and reveal this document without having discussed that with my attorney. The employee may just have an IQ above 79.

LindaS · August 2003

Thank you all for your responses and there was more to the story...

That afternoon at a Safety Committee meeting one of the members of the committee informed me, due to a conversation we were having regarding an OLD policy of employees being required to notify HR of ANY medication they were taking (we had been discussing revising some old policies), that this EE had been telling her about all the different meds. he was taking and what they do to him. After being informed by her that he "takes them all the time", I called the EE into my office to question him regarding the rumors (without bringing any specific names into the conv.).

He informed me that he is taking a long acting narcotic medication in the morning that has a "slow release" mechanism but that the amount of medication does not "do anything" regarding his capabilities to perform his job. We then asked that he provide certification from his physician indicating that this medication does not affect his ability to perform his job. He agreed.

As for Don Ds advice, I contacted our attorney regarding the information we obtained and his advice was basically the same as yours...while the new HIPAA regs. exempt WC information, he felt we should be conservative and not test this law by using this information in making any decisions regarding the EE. Luckily another employee gave us enough insight that we were able to address the situation and NOT have to bring any of the other information into the conversation.

Don D · August 2003

On a related note: Last place I worked had for years a policy REQUIRING ees to notify HR in writing of ANY meds they were taking. I scrapped that policy. First, HR is not in the business of evaluating medications and deciding which if any of them might affect performance. Secondly, the policy could easily elicit information that might identify a disability. Thirdly, it placed HR in an awkward position. If the ee cut his finger off and had sent in a form indicating he was taking cobrahipaadynamine six times a day and we let him operate the press knowing that, look at the liability. The revised policy became, "If you are taking any prescribed medication, it is your responsibility to confer with the prescribing physician and your pharmacist to determine your ability to perform your job functions at ABC. If your medication is one that tends to cause drowsiness, sleepiness, dozing, inattention, euphoria or other such side effects, you must notify your supervisor and Human Resources before continuing to work on that medication. It is our policy that employees must remain alert and attentive at all times while on duty."

System · August 2003

[font size="1" color="#FF0000"]LAST EDITED ON 08-21-03 AT 08:13AM (CST)[/font][p]Don - I've taken cobrahipaadynamine .. no euphoria, no happiness and the side effects were awful - headaches, stomach ache, flu-like symptoms - and I couldn't tell anyone about them. (I was gonna insert the sad face here, but couldn't easily and quickly figure out how to do it, so instead you get this:
:x(

Wait - I think I got it now! x:-(

Balloonman · August 2003

Some good points. Fortunately Linda you were able to address the situation. I was getting ready to ask the question what happens if you do not act on this information, and then the employee has a serious injury with machinery while you knew he should not be operating? Something to think about.
My $0.02 worth.
DJ The Balloonman

Sticky situation

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